British Columbia Treaty Process

BC Treaties 1.Historical Perspective 2.Nisga’a Final Agreement 3.Implications of Nisga’a on Resources

A Historical Look at Treaties in Canada and BC

1763Royal Proclamation  Indian rights to land exist unless extinguished by voluntary cession  Followed by governments of Canada, east of Rockies  Ignored in BC – denied application to its territory  Indians regard it as guarantee of their rights

1846Oregon Treaty  Colony of Vancouver Island established  Land, settlement controlled by Hudson’s Bay Company

Douglas Treaties  14 treaties established on Vancouver Island Douglas appointed as governor of BC

Douglas’s Policies Reserves Pre-emption Assimilation

Douglas’s Legacy Few rights, less land, less protection of Indians in BC Indian retention of communal and tribal group identities, sense of injustice Aboriginal title not extinguished

Trutch appointed as chief commissioner of lands Trutch’s policies  Explicit denial of Indian title  Indian pre-emption abolished  Reserve reduction to 10 acres per family maximum

Canada signed treaties west of Ontario 160 – 640 acres per family

1876Indian Act  Allowed only status Indians to live on reserves  Prohibited taxation on reserves  Imposed “chief and council” structure  Divided province into Indian Agencies and appointed agents

1881 Nisga’a Protest in Victoria 1884 Potlatches banned 1885 Tsimshian chiefs delegation to Ottawa

1885Victoria meeting of North Coast chiefs, Province and Dominion  Government agreed to public enquiry, but Indian demands denied 1886Commissioners visited North Coast  Indian requests ignored  Northwest Coast Agency established

1898 Extension of Treaty 8 from Alberta into BC approved

1907 Nisga’a Land Committee created to press for treaties

1913 Nisga’a sent petition to Ottawa, asking that it be presented to the Privy Council in London 1916 Allied Tribes of BC formed and hold protest meetings

1927Indian Act amended  Land claims activity outlawed  Allied Tribes declared illegal

1951Amendment to Indian Act  Potlatch and activity ban removed

1963White and Bob case  2 Nanaimo Indians hunted deer on land under Douglas treaty  Treaty recognizes aboriginal rights to hunting

Nisga’a (Calder) case  Court recognizes aboriginal title pre-existed but was split on whether it continues or whether it was implicitly extinguished 1974  Office of Native Claims established and negotiations with the Nisga’a are initiated

1975Guerin case  Musqueam chief against federal government in golf course deal  Government ordered to pay based on Indian title

1982 Canadian Constitution Section 35 (1)  Acknowledges and affirms aboriginal and treaty rights, both those that exist and those that may be acquired

1984Meares Island case  Blockade by Nuu’chah’nulth Indians to protest logging on their traditional territory  Injunction granted to preserve evidence of historic usage like CMTs  6 more injunctions granted based on this case in BC

Sparrow case  Constitution 35 (1) applied to recognize aboriginal fishing rights in non-treaty areas

1990BC Claims Task Force set up 1991  BC Claims Task Force recommended 6-step treaty negotiation process 1992 BC Treaty Commission established

1993  Treaty Negotiation Advisory Committee established  Treaty Commission began accepting First Nations into the Treaty Process 1994  Canada recognized the inherent right to self- government as an existing aboriginal right

1996  Nisga’a Tribal Council and federal and provincial governments signed an Agreement In Principle outside the BC Treaty Process, as a foundation for negotiating BC’s first modern treaty 1997Delgamuukw decision  Aboriginal titles defined

1998 Nisga’a approved Final Agreement 1999  BC and Canada ratified Nisga’a Final Agreement  Sechelt Agreement in Principle was signed, marking the beginning of talks to conclude a treaty

2000  Nisga’a Treaty became law  Nisga’a treaty and enacting legislation constitutionally validated  Self-government deemed as a constitutionally protected aboriginal right

The Nisga’a Final Agreement: Summary

Lands Nisga’a Lands: 1,992 km 2 within lower Nass Valley; 1,930 km 2 of Crown Land & 62 km 2 of ex-Indian reserves Also, Nisga’a fee simple lands outside Nisga’a Lands – both will exist as fee simple

Minerals Nisga’a own all subsurface resources on Nisga’a Lands

Commercial Recreation Tenure Receive a commercial recreation tenure for guiding which will operate under provincial laws Existing guide outfitter tenures on Nisga’a Lands remain under provincial jurisdiction

Protection of Historic Sites/Parks and Ecological Reserve Key cultural sites to be protected under provincial ownership & jurisdiction – features to be renamed with Nisga’a names, including Nisga’a Memorial Lava Bed Park and Gingietl Ecological Reserve Creation of 6 ha Bear Glacier Provincial Park

Water Province retains full ownership & regulatory authority over water Nisga’a allocated 1% of average annual flow from Nass Valley Watershed for domestic, industrial and agricultural purposes Have reservation with the possibility of hydro power development

Forestry Forest Resources on Nisga’a Lands: Own all forest resources; existing licensees will continue to harvest timber for a five-year transition period Rules established by the Nisga’a must meet or exceed provincial standards for forest practitioners

Forestry Forest Resources outside Nisga’a Lands: Province supports Nisga’a in purchase of an existing forest timber license to a max. of 150,000 m 3, subject to the Forest Act

Access/Roads and Rights of Way General public have access to Nisga’a public lands for hunting, fishing and recreation Nisga’a Highway remains a provincial highway Federal and provincial governments can acquire interests in Nisga’a Lands (e.g. rights of way) for public and industrial purposes, subject to fair compensation

Fisheries Annual salmon allocation ~ 17% of Nass TAC Also pink and sockeye salmon allocation for domestic and commercial purposes under the Harvest Agreement (outside the treaty) Call sell salmon if directed from commercial or recreation fisheries – sales subject to laws of general application Canada & BC responsible for conservation and management of fisheries and fish habitat

Fisheries Entitlement to steelhead and non-salmon species (e.g. oolichan) harvest for domestic purposes $11.5 million to enhance participation in commercial fishing (e.g. purchase of licenses and vessels) Joint management committee and fisheries trust to affirm stewardship role for the resource

Wildlife Specific allocations for moose, mountain goat and grizzlies Hunting is subject to conservation, public health and public safety; not to interfere with other uses of Crown land Annual management plan to be approved by the Minister Cannot sell wildlife to general public, just trade/barter amongst Aboriginals Wildlife committee makes recommendations to harvesting and wildlife management in area

Environmental Assessment and Protection Nisga’a have concurrent authority with Canada and British Columbia for assessment and protection on Nisga’a Lands; federal and provincial laws prevail if conflict occurs

Nisga’a Government “Central” government – Nisga’a Lisims Government (open, democratic, accountable) Law making powers concurrent with Canada and British Columbia – no exclusive powers Can make laws governing culture, public works, land use, marriages; continue to provide health, child welfare and education under existing arrangements

Administration of Justice With provincial approval, Nisga’a can:  provide full policing services  Establish court with jurisdiction on Nisga’a Lands  Must meet provincial standards in both categories Nisga’a and regional district may enter into agreements to coordinate activities in common areas of responsibility

Fiscal Financing Agreements Receive funding to support governmental services comparable to those available in Northwest region of BC, taking into account the Nisga’a’s ability to fundraising Negotiated every 5 years

Capital Transfers $190 million from Canada and BC over 15 years + $10 for a fisheries trust from Canada $10.4 million for implementation activities ~$16.1 million for fiscal support (over 5 years) $30 million for infrastructure, training and development *Canada to provide majority of funding*

Taxation Indian tax exemption will be eliminated after transitional period of 8 years for transaction (e.g. sales) tax and 12 years for other (e.g. income) taxes Nisga’a Government, Canada and BC to negotiate coordination of tax systems Nisga’a Government can levy direct taxes to citizens on Nisga’a Lands

Cultural Artifacts and Heritage Protection Royal British Columbian Museum and Canadian Museum of Civilization to return significant portion of Nisga’a artifacts

Dispute Resolution In the event of disputes on application, interpretation or implementation, negotiation and mediated meetings will occur; if efforts fail, move to arbitration or BC Supreme Court

IMPLICATIONS OF THE NISGA’A TREATY ON RESOURCE MANAGEMENT

Forestry Impacts The Nisga’a Nation owns all forest resources on Nisga’a Lands. Nisga’a Lisims Government has the exclusive authority to determine, collect, and administer any fees, rents, royalties, or other charges in respect to: –All timber and non-timber resources on Nisga’a Lands.

5 year transition period –Forestry practices under the BC Forest Practices Act. –existing licence holders are required to use Nisga'a contractors to harvest 50% of the cut in the first year, and 70% in each of the following years.

After 5 years –All harvesting will be controlled by the Nisga’a. –Nisga’a will create their own Forest Practices Code. No more intrusive to the environment than the B.C. code.

The timber harvesting rates have been set for the next 9 years at: –Year 1 – 165, 000 m3 –Year 2 – 165, 000 m3 –Year 3 – 165, 000 m3 –Year 4 – 165, 000 m3 –Year 5 – 165, 000 m3 –Year 6 – 135, 000 m3 –Year 7– 135, 000 m3 –Year 8– 135, 000 m3 –Year 9 – 130, 000 m3

Non-Timber Forest Products: –Nisga’a Lisims Government may make laws in respect of non-timber forest resources, including: Mushrooms Berries Salal

Nisga'a will be no different than any other owner of private forested land in the province. –Public no longer have control over land. –The Nisga’a determine how much timber is harvested, by what method, and by whom.

If other similar treaties are signed in BC. –Ownership of the majority of BC’s forest land, will change from public to private ownership. –The people of BC, will no longer have control over one of our most valuable natural resources.

Fisheries Impacts

Nisga’a get 26% of the total allowable catch on the Nass river. –Their yearly allocation of Salmon is: - 44,588 sockeye salmon - 11,797 coho salmon - 6,330 chum salmon - 6,524 chinook salmon - 4,430 pink salmon

–The Nisga’a also receive : a commercial yearly allocation averaging 28, 913 sockeye and 88,526 pink salmon under an agreement which is not part of the Treaty; $11.8 million to increase participation in the general commercial fishery; $10.3 million in Canada's contribution to the Lisims Fisheries Conservation Trust (to which the Nisga'a provide $3.1 million);

Impacts on Non-Nisga’a Fishers - Loss of fishable waters for sport fishing - Loss of commercial fishery in area

Impacts on Wildlife

10,000 square kilometer Nisga'a wildlife management area was created. –Provides good habitat for wildlife –Allows for Nisga’a to harvest moose, deer, elk, bear, and mountain goat. –Less hunting area for Non-Nisga’a –Impact on other resources in area.

Conclusions